Citation Nr: 1302933
Decision Date: 01/25/13 Archive Date: 01/31/13
DOCKET NO. 07-27 784 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to initial rating in excess of 10 percent for the service-connected narcolepsy.
2. Entitlement to initial compensable rating for the service-connected hypertension.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo
INTRODUCTION
The Veteran served on active duty from December 1996 to March 2005.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Custody of the file was subsequently transferred to the Atlanta RO in Decatur, Georgia.
The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing in September 2011. A transcript of her testimony is of record. The Board remanded the two issues in February 2012 for further development and consideration.
The issue of entitlement to an increased rating for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's narcolepsy is manifested by one narcoleptic episode in a six-month period, but without actual clinical seizure disorder episodes, for which the Veteran is prescribed medication.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for narcolepsy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.124a, Diagnostic Code 8108-8911 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The present case, however, involves a "downstream" issue, as the initial claim for service connection was granted in the rating decision on appeal, and the Veteran disagrees with the evaluation assigned.
In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
With respect to the duty to assist, VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and afforded the appellant the opportunity to give testimony before the Board.
The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her narcolepsy claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJDRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered her treatment history and symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis.
Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
The Board remanded this claim in February 2102 to obtain additional VA treatment records and a VA examination. The Veteran's VA treatment records were entered into the Veteran's Virtual VA electronic folder, and an examination was obtained. The Board therefore is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998).
All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.
VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.
II. Analysis
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999).
In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The Veteran is currently rated under Diagnostic Code 8018-8911 for his narcolepsy. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 8108 pertains to narcolepsy, which is to be rated as epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8108 (2012). Diagnostic Code 8911 pertains to epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012).
Under Diagnostic Code 8911, for petit mal epilepsy, both the frequency and type of seizures a Veteran experiences are considered in determining the appropriate rating. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a (2012).
To warrant a rating the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121 (2012).
Under the general formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned when there has been at least one major seizure in the last two years or at least two minor seizures in the last six months. A 40 percent rating is assigned when there is at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2012).
A VA examination was conducted in January 2005, prior to her separation from service in March 2005. The examiner noted that the Veteran's narcoleptic symptoms persisted despite treatment with Provigil. However, she was given methylphenidate four days earlier and her symptoms subsided.
A March 2007 VA neurological progress note indicted that the Veteran's dosage of methylphenidate was inadequate to control her symptoms of narcolepsy. Without medication, the Veteran continued to have sleep attacks and hypnagogic/hypnopompic hallucinosis. She has not had true catalepsy. [Cataplexy is a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. James v. Brown, 7 Vet. App. 495, 496 (1995).] Neurological examination was normal. A May 2007 VA progress note indicted the Veteran fell asleep at her job in service due to her narcolepsy, but her symptoms were currently well-controlled with medication. She was able to sleep well at night.
At her Board hearing in September 2011, the Veteran stated that her narcolepsy comes and goes. She constantly has to fight to stay awake and once she fell asleep and hit her head. She stated that the she must restrict her activities due to her narcolepsy, such as driving and cooking. She testified that, twice in a year, the smoke detector woke her up when she fell asleep while cooking at home.
A VA electroencephalogram (EEG) conducted in December 2011 was normal.
A VA examination was conducted in July 2012. The Veteran noted she was prescribed methylphenidate, and is alert and oriented when she is takes the medication. If she does not take her medication, she has excessive daytime sleepiness. She indicated she had from zero to one episode of narcolepsy in the last six months.
The Veteran is competent to report symptoms that she is capable of perceiving with her five senses. As such, her statements and testimony regarding the number of narcoleptic episodes she has is competent; and, as there is no evidence contradicting the Veteran's statements, they are taken as credible.
The Veteran had one or less narcoleptic episode in the last six months. She requires continuous medication to control her narcolepsy, and the medication appears very effective in controlling her symptoms. The Veteran's narcoleptic episodes, which occur approximately once every six months, are analogous to minor seizures, because her periods of falling asleep can be considered the equivalent of a brief interruption in consciousness. See NOTE (1) and (2), 38 C.F.R. § 4.124a, Diagnostic Code 8911. However, the evidence does not show that the Veteran has actual seizures. Therefore, the Veteran does not exhibit the equivalent of at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months; thus, a higher, 20 percent rating is not for application.
Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116.
The schedular evaluation in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those manifestations are not present in this case. The examiner who conducted the July 2012 VA examinations noted that the Veteran's narcolepsy did not result in any functional limitation. The Veteran has not required hospitalization due to the service-connected disability, and marked interference of employment has not been shown. She works full time in a clerical occupation. She testified that she had to take leave twice due to her narcolepsy symptoms. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.
ORDER
Entitlement to an increased rating for narcolepsy is denied.
REMAND
In February 2012, the Board remanded the claim for an examination and opinion regarding the severity of the Veteran's service-connected hypertension.
The Veteran was afforded a VA examination in July 2012. The examiner did not measure the Veteran's blood pressure, which is the criterion for rating hypertension under Diagnostic Code 7107. That should be done.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA examination in the appropriate specialty to determine the current level of severity of her service-connected hypertension. The claims folder should be made available to the examiner for review before the examination. Detailed clinical findings, including blood pressure measurements, should be reported in connection with the evaluation.
2. Then readjudicate the claim. If the claim continues to be denied, send the Veteran and her representative a supplemental statement of the case and give them time to respond.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs